LIONEL PODCAST: Ashley Judd Needs a Lesson in Criminal Law

This is not in any way a crime. Ashley Judd says that she intends to press charges against those who have been harassing her on Twitter with threats of sexual violence. Threats of sexual violence. I’m not too sure about that. Long-distance, ethereal “threats.” And I’m not being too priggish as it comes to her allegations. They are severe and demand scrupulous deconstruction. She wades into March Madness nonsense with mouth-breathers and knuckle-draggers and is surprised when monosyllabic rubes weigh in. Puh-leeze, Ms. Judd. “The amount of gender violence I experience is absolutely extraordinary,” she told the Today show, “and a significant part of my day today will be spent filing police reports at home about gender violence that’s directed at me on social media.” [e.s.] Gender violence. Whoa! But here’s my favorite part. Though she tells Today that she doesn’t expect anything to come of the police reports, she still wants to send a message by filing them. [e.s.] So, does that mean she’s filing a false police report if she knows it has no merit? It gets worse. She adds: “Everyone needs to take personal responsibility for what they write,” she tells MSNBC, also calling out the need to fight against the practice of shaming others on social media. Shaming?! Are you reading this? Shaming?!

Assault at common law involves a threat of bodily harm coupled with an apparent, present ability to cause the immediate harm.

Sorry, Ashley. Would his horrid speech be assault if it were said in front of Ms. Judd? No. So, how is it a crime when Tweeted to her and for the world to see? I loathe these coward trolls as much as anyone, but this is simply not a crime. Nor should it be. It is certainly offensive, troublesome and most problematic. It absolutely causes concern and rational fear especially among those who by virtue of their status are all too often subjected to such insanity. But as is usually the case, the question to ask is how do you draft a statute that protects your right to speak yet exposes me to criminal liability by virtue of a subjective sense of alarm or being offended? If I were to walk up to a complete stranger and utter a series of vile and scabrous rants, unless I directly threaten someone, which involves a real and immediate promise to do physical violence, most would say that your best reaction is to retreat. That is not to say that harassment or stalking charges would not be available depending upon the duration and severity of the conduct.

The social media are different kettles of fish. I have the ability to mute or block offensive speech. I also, by virtue of participating in these verbal scrums, could be seen as consenting to the behavior at hand. Let me reiterate, I in no wise countenance or approve of this horrible behavior. But what concerns me even more is a poorly drafted statute that subjects the proponents of free speech to criminal sanctions because I were to feel uneasy or offended or somehow the victim of gender violence via words alone. Without getting too graphic, it is common in our American parlance to tell people to kiss our arse, suck a host of appendages or worse. The expressions are certainly crude and boorish but they do not necessarily constitute a threat of imminent violence or harm. Sorry, Ashley. You’ve got the attention, your PR folks have succeeded, but you’re traipsing potentially on my beloved First Amendment. And that dog don’t hunt. As I have said for years, no one will take our freedom of speech from us; we will give it away gladly. Because we will confuse that which is bothersome with that which is subject to criminal sanction and penalty. We will take every bit of noisome speech, everything that is annoying, that which is hurtful and mean spirited, and we will almost reflexively and through a Pavlovian obeisance demand the criminal sanctions be applied. We are the First Amendment’s worst enemy. We are.

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